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Beyond the Prohibition Debate: Thoughts on Federal Drug Laws in an Age of State Reforms

Nearly forty years after President Richard Nixon first declared a "war on drugs" (calling drugs the "modern curse of the youth, just like the plagues and epidemics of former years") it seems the war may finally be coming to an end. In his first interview after being confirmed as the Director of the Office of National Drug Control Policy, Gil Kerlikowske told the Wall Street Journal that he thought it was time to retire the war rhetoric when it comes to addressing drug abuse. At the state level, the past year has seen proposals to legalize marijuana introduced in a handful of states with polls showing approximately forty-five percent of Americans nationwide in support of the idea. Importantly, these recent developments follow nearly a decade and a half of successful drug reform measures at the state level on issues ranging from medical marijuana, treatment instead of incarceration, asset forfeiture, and marijuana decriminalization. In short, the argument that we should end the war on drugs in favor of a new approach no longer resides in the world of the politically unthinkable, and has quickly become a subject of serious policy and political discussion.

This Article considers how we might think about federal drug laws in a post-drug war context, particularly one in which states are increasingly passing laws that are at-odds with federal law. It argues that, when it comes to federal drug law, traditional debates about prohibition, legalization, or decriminalization turn out to be surprisingly unimportant. Instead, as states begin to enact new policies, the key question facing federal lawmakers and administration officials will be how to harmonize federal law with state reforms.

The Article's argument proceeds in four Parts. Part I provides a brief overview of the mounting evidence that the war on drugs strategy has proven to be an extremely costly and largely ineffective method for dealing with the problem of drug abuse. Part I also looks at how dissatisfaction with the current approach has led to increased interest in decriminalizing or legalizing marijuana, even at the federal level. Part II argues that the focus on debates over legalization or decriminalization at the federal level is misplaced. This is because, even if it wanted to, the federal government would not have the ability to unilaterally "legalize" or "decriminalize" any controlled substances. Using the example of medical marijuana laws as a case study, Part III contends that, just as the federal government does not have the ability to unilaterally decriminalize a drug, it also does not have the power to stop states from reforming their own laws. Part IV considers the implications of Parts II and III and concludes that they counsel in favor of reforming federal drug laws in a way that would respect states' decisions to innovate in the area of drug policy, while also providing important controls and incentives to prevent against negative externalities in the form of spillover effects in neighboring states.

Date posted: October 20, 2010
; Last revised: June 20, 2011

Suggested Citation

Kreit, Alex, Beyond the Prohibition Debate: Thoughts on Federal Drug Laws in an Age of State Reforms (October 20, 2010). Chapman Law Review, Vol. 13, p. 555, 2010; Thomas Jefferson School of Law Research Paper No. 1694947. Available at SSRN: http://ssrn.com/abstract=1694947